Preserving the tradition of Cabinet government

A Constitution for Aotearoa New Zealand proposes to preserve and sharpen NZ’s tradition of Cabinet government, while ensuring that necessary checks and balances are in place.

Cabinet is the decision-making branch of Government, tasked with the job of actually governing the nation. It wields a great deal of public power on a day-to-day basis.

The Government is made up of a number of key institutions, including the Cabinet, ministers outside of Cabinet, the departments and ministries of the public service, and the broader state sector. New Zealand also have a myriad of Crown entities that are funded to a greater or lesser extent from the public purse and are independent for some purposes but not for others. The Government is the branch of the State that people are most likely to come into contact with on a regular basis.

Cabinet drives this big machine. It is from Cabinet that the rest of the Government machine receives its instructions. In short, Cabinet governs.

Cabinet meets weekly for most of the year. It is made up of most but not all ministers and chaired by the Prime Minister. At each meeting it considers papers from ministers concerning proposed laws or regulations, and other matters of Government policy.

Cabinet makes thousands of decisions each year, and the public service executes these decisions under ministerial supervision.

Cabinet also has committees which provide for more detailed consideration and discussion of issues before they are referred to the full Cabinet for discussion and decision.

Once Cabinet decisions have been made, they must be unanimously supported outside of Cabinet by all ministers involved, no matter how much an individual minister may disagree with a policy. This preserves the idea of collective responsibility and ensures that the Government presents a unified front to other political parties, to Parliament, and to the public.

Since the advent of MMP, the doctrine of ministerial responsibility has weakened but only slightly. Ministers outside Cabinet from support parties may be bound by collective responsibility only in relation to their particular portfolios, while retaining the right to vote against the Government on many policies outside of those portfolios.

Even in this form the doctrine does assist in controlling the dominant party and the House itself, because every MP who is a Minister or under-secretary must vote for the decision of Cabinet in the party caucus.

Ministerial responsibility is an important ingredient of the existing mechanisms of accountability and responsibility of the Cabinet to the House of Representatives. Both collective responsibility and individual ministerial responsibility are constitutional conventions or customs. They have no formal legal status.

But the conventions mean that Ministers are accountable to the House for ensuring that the departments they are responsible for carry out their functions properly and efficiently. Ministers can be required to account to the House for a department’s errors, even if the Minister had no knowledge of or involvement in the department’s actions.

In reality ministers do not relish taking responsibility for things that go wrong. They often try to avoid accountability and sometimes establish structures to mask the fact that they are pulling the strings behind the scenes.

While Cabinet is technically the centre of Government in New Zealand, it does not have any formal legal basis or exercise any legal powers. It exists purely as a widely accepted convention. Some Cabinet decisions have to be taken to the Executive Council (which is made up of Ministers and the Governor-General) to be given legal effect through the making of orders in council or regulations. The Executive Council and individual ministers are the ones who exercise the legal powers, not the Cabinet itself.

We do not wish to fundamentally alter the nature of Cabinet Government in New Zealand. It is an efficient and effective way of making decisions. Nor do we wish to downgrade the importance of the Prime Minister.

But we do wish to place some framework around the Executive Government, so its functions and powers are clearly defined and have a legal basis which cannot be easily altered to suit the Government’s political needs. It is important that the Constitution should state the fundamental rules of the system.

Our proposed Constitution therefore sets out the structures and powers of Government so everyone can see them, understand them, and hold the Government accountable for them.

The Constitution begins by stating that the State has all powers of government: legislative, executive and judicial. The executive power will be exercised by the Government. The Government comprises Cabinet, ministers and the public service.

The Government acts through Cabinet, which has the general direction and control of the Executive Government through the appropriate minister or public servant. The Cabinet is collectively responsible to the House of Representatives.

The proposed Constitution does institute some new checks and balances. It limits the size of Cabinet to 20 members. It removes the Prime Minister’s powers to summon and dissolve Parliament, meaning he or she has less leverage over other Ministers and MPs. It transfers some important decision-making responsibilities from the Government to Parliament. And it strengthens checks and balances, for example by strengthening constitutional requirements for openness and transparency.

But Cabinet will remain the engine room of Government, and the Prime Minister will be its undisputed head.

The responsibility of the Government to Parliament will be sharpened. Who is responsible for what will be clear. The Constitution will demonstrate in realistic terms the responsibilities and duties of the Government and not rely on outdated and unwritten conventions. Then everyone can easily find out what the rules are, and they cannot be easily altered for the convenience of the moment.